(BW) Litigation as a Growth Industry: Fulbright & Jaworski Survey Finds U.S. Businesses Face an Average of 305 Lawsuits Worldwide, While Spending 70% of Legal Budgets on Litigation

Published 5:45 pm, Tuesday, October 10, 2006

American business, known the world over for its entrepreneurship, innovation and competitiveness, might just as easily be recognized for another attribute â€“ its time spent on legal disputes. Thatâ€™s the conclusion of a new survey of corporate counsel from international law firm Fulbright & Jaworski L.L.P.

In its third annual survey of corporate litigation trends â€“ pulling data from 422 in-house law departments worldwide â€“ Fulbright found that U.S. companies face an average of 305 pending lawsuits internationally. For large U.S. companies â€“ those with $1 billion or more in annual gross revenue â€“ the number of lawsuits soared to 556 cases, with an average of 50 new disputes emerging each year for close to half of them.

Although the majority of those cases are in U.S. courts, the tide of international disputes is rising â€“ more than one-third of companies said that up to 20% of their dockets originate in foreign venues, proof that U.S.-style litigation is going global.

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No segment of the American economy was spared a weighty litigation docket, but the undisputed champion of disputes is the insurance industry, where companies face an average 1,696 lawsuits, spanning product liability and environmental class actions to directors and officers claims, and even coverage fights over hurricanes and terrorist attacks. Retailers and energy firms were also targeted heavily â€“ both sectors reporting average caseloads north of 330 per company.

By contrast, U.K.-based companies surveyed by Fulbright reported an average of only 178 cases â€“ 63 in the U.S.

Nor is the litigation all one-sided. Seventy percent of the in-house counsel surveyed by Fulbright confirmed that their companies initiated at least one new lawsuit in the past year as plaintiff.

And conventional lawsuits donâ€™t tell the full story: half of participating U.S. counsel said their companies separately faced at least one new arbitration and one new regulatory proceeding in 2005-06, on top of their litigation caseload.

As lawsuits have multiplied â€“ brought by shareholders, regulators, consumers, employees and competitors â€“ so has another related event: the internal investigation. Nearly two-thirds of the U.S. companies interviewed by Fulbright reported that their companies had launched at least one such probe in the past year necessitating use of outside counsel, a certain byproduct of Sarbanes-Oxley legislation, as well as the recent mega-scandals of Enron and WorldCom.

That litigation is an everyday fact of life for American corporations is borne out by findings from companies of all sizes and industries. Ninety-four percent of U.S. counsel canvassed said that their companies had some form of legal dispute pending in a U.S. venue. For 89%, at least one new suit was filed against their company during the past year. Nor are businesses expecting any let-up. One third of all companies, and nearly 40% of $1 billion-plus firms, project the amount of litigation to increase next year.

With big litigation comes a big price tag. U.S. companies report spending 71% of their overall estimated legal budgets on disputes. Nearly 40% of Fulbrightâ€™s U.S. respondents reported at least one $20 million suit commenced against them in the past year. Two percent faced 50 new suits or more involving at least $20 million in claims, or more than $1 billion worth of new disputes on the table for some large companies.

For billion-dollar-plus corporations, the costs of litigation are especially significant. Large U.S. companies commit an average of $19.8 million to litigation, approximately 58% of total average legal spending of $34.2 million. More than two-thirds of large companies surveyed reported at least one new suit involving $20 million or more in claims; 17% faced a minimum of six suits in the $20 million-plus range.

The generally high cost of dispute resolution in the U.S. has not been lost on the rest of the world. For more than half of foreign counsel surveyed by Fulbright, â€œhigh legal costsâ€� was cited as a top concern about litigating a dispute in the U.S.

While smaller companies are hardly litigation free, the weight is considerably less. Companies with revenues under $100 million reported only nine cases pending on average. Counsel at American small businesses say their average dispute spending totaled only $178,000.

Survey Reaches 311 U.S. Companies, Half Publicly-Held

For this latest edition of Fulbright & Jaworskiâ€™s Litigation Trends Survey, in-house counsel from 311 companies headquartered in 29 states participated in what has become one of the largest polls of corporate counsel on litigation issues. In addition to U.S. respondents, Fulbright surveyed law departments in 22 other countries, including the U.K., Canada, Mexico, Japan, Brazil and elsewhere in Asia, Europe and Latin America. Eighty-two percent of U.S. participants held associate general counsel or more senior positions, including chief legal officer and chief litigation counsel.

Fifty-two percent of U.S. respondents work for publicly-held companies; a similar percentage represent companies with gross revenues of $1 billion or more. Of the remainder, 28% were middle-market firms with sales between $100 million and $999 million and 22% had less than $100 million in revenues. The survey breaks down results into 13 different industry sectors, including energy, manufacturing, financial services, retail/wholesale, technology/communications, engineering/construction, health care and pharmaceutical, real estate, insurance and education, as well as non-profit organizations and trade associations.

As in past years, Fulbright asked law departments to identify their greatest concerns on the litigation front â€“ a challenging task given the breadth of lawsuits faced. Despite the recent heat generated by investigations into stock options backdating, companies say their No. 1 litigation fear stems from labor and employment claims, followed by old-fashioned contract disputes, and ahead of regulatory actions, patent and other intellectual property suits, and class actions.

â€œFundamental Part of American Businessâ€�

â€œPerhaps even more than our two previous studies, our new survey reveals how thoroughly litigation is woven into U.S. corporate culture â€“ the sheer number of cases and huge slice of spending taken up by lawsuits make abundantly clear that litigated disputes are a fundamental part of doing business,â€� said Stephen C. Dillard, chair of Fulbright & Jaworskiâ€™s global litigation practice.

â€œOf course, litigation is not always defensive,â€� he added. â€œThe great majority of companies report initiating lawsuits in order to enforce contracts, safeguard intellectual property, block monopolistic behavior, and achieve other valid business objectives that require them to take assertive legal action.â€�

One of this yearâ€™s surprises, Mr. Dillard noted, was the large percentage of companies â€“ nearly two-thirds â€“ that had undertaken internal investigations in the past year requiring outside counsel. â€œPartly this is an outgrowth of our modern regulatory and enforcement climate in which companies are put on fast-track notice by government agencies that an action may be forthcoming, which prompts them to conduct a full-scale investigation,â€� he said.

â€œThe surge in investigations is also an inevitable consequence of the big corporate meltdowns that have occurred in recent years,â€� Mr. Dillard suggested. â€œManagement and corporate boards have become much more proactive at taking the lead in policing themselves for possible wrong-doing and potential liability. Whether borne from the fear of enforcement, litigation, or negative publicity, internal investigations are actually a means of containing future financial or reputational damage.â€�

Mr. Dillard took stock of the surveyâ€™s overriding purpose: â€œOur goal,â€� he said, â€œis to probe corporate counselsâ€™ concerns on their most pressing litigation issues â€“ not only about the costs and types of cases they confront most often, but attitudes toward class actions, electronic discovery and document retention, the value of arbitration in international disputes, economic issues, and of course, their views of outside counsel, which are always highly instructive.â€�

Below is a summary of key findings in the Fulbright & Jaworski 2006 Litigation Trends Survey:

1. The Disputes Keep Comingâ€“ More than a third of the U.S. Fulbright respondents reported having 20-plus lawsuits filed against them in the past year, with nearly one-quarter of counsel saying they faced more than 50 fresh cases. Remarkably, 11% of all companies managed to escape the past year unscathed by a single new lawsuit; the clear majority of these were smaller companies with under $100 million in revenues. Not a single billion-dollar firm was spared from a new filing and 44% faced at least 50 new actions in 2005-06.

2. SEC and OSHA Top Government Inquiriesâ€“ As litigation has risen across most business sectors, so has the specter of government investigations. Forty-nine percent of U.S. counsel surveyed reported an increase in regulatory inquiries at their companies in the past three years. Two federal agencies â€“ the Securities & Exchange Commission and the Occupational Safety & Health Administration â€“ made the most frequent visits: 33% of companies had a knock at the door by either the SEC or OSHA since 2003. Coming in next were state attorneys general â€“ 30% said theyâ€™d been subject to state AG proceedings in the same period. Other key agencies initiating inquiries included: the Environmental Protection Agency; Federal Trade Commission; Food & Drug Administration; and Federal Communications Commission. Fifty percent said they were contacted by other miscellaneous government bodies. Billion-dollar companies were the biggest government targets â€“ 57% reported an increase in regulatory proceedings in the past three years, versus only 26% for companies under $100 million.

3. Internal Investigationsâ€“ The rise in regulatory proceedings and enforcement actions has undoubtedly fueled the growth in internal investigations. Sixty-three percent of U.S. companies reported having undertaken at least one in-house probe requiring outside counsel in the past year. Fifteen percent were forced to launch three or more such investigations â€“ that number jumped to 26% for billion-dollar companies. Energy and health care firms may have the most red flags â€“ 30% of counsel in both industries reported commencing three or more investigations in the past year. Other sectors with the highest number of investigations: manufacturers, financial services firms and education providers â€“ 18% of these faced three or more legal probes. Trade associations may have gotten off easiest â€“ 57% reported zero internal investigations in 2005-06, the highest ratio of any segment surveyed.

4. On the Offensiveâ€“ While businesses may sometimes feel under a siege of defensive litigation, the battle is definitely two-sided: over 70% of respondents initiated at least one lawsuit in 2005-06, with nearly half filing up to five fresh actions. An especially active minority â€“ 8% â€“ commenced more than 20 new lawsuits against defendants. The number of corporate disputes is even greater when arbitration is included in the mix â€“ more than a third of U.S. counsel report that their companies brought at least one new arbitration matter in the past year.

5. Plaintiffsâ€™Scorecardâ€“ Not surprisingly, larger companies are more apt to play offense â€“ 87% of billion-dollar firms initiated at least one lawsuit during the past year; a third brought more than five. Yet smaller businesses were hardly shy about pulling the litigation trigger: half of companies under $100 million commenced a lawsuit in 2005-06, and 13% sought arbitration to handle their disputes. The Fulbright data reveals a sort of litigious pecking order, with manufacturers and retailers proving the most active plaintiffs â€“ some 90% of companies in both industries brought at least one lawsuit during the past year, followed by real estate firms and insurers. The least likely to sue were trade associations, educational businesses, and at the bottom, non-profit organizations, though a full third of non-profit entities managed to file at least one lawsuit.

6. Litigation Fear Factorsâ€“ With so many risks facing the modern corporation â€“ from product liability and high-stakes patent infringement claims to contentious shareholder revolts â€“ itâ€™s notable that the greatest single dispute angst among U.S. companies stems from labor and employment problems: 54% of in-house counsel identified labor/employment as among their top three concerns. Middle-market companies in particular were distressed by the prospect of employee-related litigation. Next up were contract disputes, which 40% of respondents included among their top worries. The No. 3 concern was class actions, drawing a 26% response rate, although for billion-dollar companies, the number jumped to 37%, reflecting the frequency with which large businesses are targeted by group actions. Completing the Top 10 litigation concerns: IP/patent disputes; personal injury; regulatory proceedings; product liability; environmental/toxic tort; securities litigation/enforcement; and antitrust/trade issues. As for the kinds of disputes least likely to keep most U.S. corporate counsel awake at night: bankruptcy; real estate; and tax â€“ only 3% singled out the latter as a top-of-mind worry.

7. Insurers on Trialâ€“ Insurance companies, historically the object of disputes brought by policyholders and class action claimants, are by far the biggest litigation magnets. The approximately 1,700 cases pending by the average insurer was more than five times the average tally posted by the next highest sectors â€“ energy (364), retail (333) and financial services (300). And the cases continue to mount â€“ more than half of insurance company counsel reported taking on 50 or more new lawsuits in the past year. Insurers appear to get embroiled in the biggest-stakes cases â€“ 17% reported having more than 50 lawsuits pending with at least $20 million at issue. By contrast, only 6% of energy companies reported more than 50 suits in the $20 million or greater range.

8. Other Industry Caseloadsâ€“ No industry came anywhere close to insurance on the total number of cases pending, but no sector was entirely spared the burden of at least some litigation on its books. Rounding out the most litigation-intensive segments by average number of lawsuits after energy, retail and financial services were: manufacturing; technology/communications; health care; and pharmaceutical. In the lower echelon â€“ sectors facing fewer than 25 cases per company â€“ education providers averaged 23; non-profits averaged more cases than engineering/construction or real estate firms. At the very bottom of the chart were trade associations, with an average of only four pending lawsuits.

9. Counting Class Actionsâ€“ Fulbright asked corporate counsel to what degree their companies have had to fend off class action cases. Nearly two-thirds of respondents reported not having any class actions pending against them, even though such suits were cited among counselsâ€™ most pressing dispute concerns. Billion-dollar companies took the lionâ€™s share of class actions â€“ they were over five times more likely than middle-market firms to be hit with class-driven suits, and nine times more prone than companies under $100 million. Labor and employment cases were the most prevalent class actions experienced by companies in the past three years, followed by securities litigation, environmental/toxic tort and antitrust cases.

10. Litigation Cost Averagesâ€“ The average litigation expenditure for the 311 U.S. companies participating in the Fulbright study was $12 million â€“ an amount that does not include ultimate case settlement or judgment payments. That figure looms larger considering that it represents more than 70% of overall legal spending by the average American business. For a number of industries, the costs associated with litigation â€“ everything from attorneysâ€™ fees to document production, court filings and jury consultants â€“ was considerably steeper. Engineering and construction firms averaged $39 million annually on litigation â€“ not only more than three times the survey average, but 59% higher than what the average U.S. company spent on all its legal work (an estimated $17 million). Insurers came in a close second, averaging $36 million for litigation (recall their average industry caseload of 1,700 matters), while manufacturers and energy concerns also skewed higher than the survey average, hitting $14.3 million and $13.5 million respectively for their lit costs. Tech companies averaged $11.8 million, followed by health care ($10.3 million), financial services ($6.3 million), pharmaceutical ($2.8 million), and retail ($2.1 million). Real estate firms came off relatively light on litigation spending, at an average of only $389,000 per year. The sectors taking the smallest economic hit from disputes were non-profits ($265,000) and trade associations ($253,000). Companies under $100 million averaged only $178,000 on disputes, less than 2% of the overall survey average.

11. E-Discovery Challengesâ€“ Despite the growing concern in legal circles over the potential impact of electronic discovery, most companies do not appear to have had their discovery protocols and procedures tested in court. A 70% majority of U.S. counsel said that e-discovery issues had rarely or never been the subject of a motion, hearing or ruling in one of their cases over the past year. Only 4% indicated they faced an e-discovery challenge with any frequency. For now, technology/communications companies feel the greatest heat from e-discovery contests â€“ 43% reported litigating e-discovery disputes with a high degree of frequency in the past year. The only other sectors showing a meaningful blip in the number of e-discovery contests were health care (14%) and manufacturing (8%). Should a wave of e-discovery problems wash over American business, as some observers have predicted, companies may have to scramble to get ready: only 15% of U.S. counsel surveyed by Fulbright said their companies were well-prepared to handle a difficult e-discovery challenge as part of a contested civil matter or regulatory investigation.

12. Records Retention Policiesâ€“ Since the collapse of Arthur Andersen in 2002, â€œdocument retentionâ€� has become a watchword for many corporate law departments alert to the dangers of improper purging of company information. This yearâ€™s survey shows that corporate counsel are indeed heeding the importance of document preservation procedures in the face of a lawsuit or investigation. Seventy-nine percent of respondents said their companies had a written records retention policy in accordance with applicable statutes and regulations. Of the minority remaining, two-thirds said they were planning to adopt a records policy in the coming year. At the same time, 80% of counsel indicated their companies had procedures in place for issuing a â€œlitigation holdâ€�â€“ precise instructions for document retention in the event of a civil suit or enforcement action. Approximately half of those without a litigation hold policy said they expected to implement one in the next 12 months. Larger companies appear more advanced in this area â€“ around 90% of billion-dollar firms reported having both retention and litigation hold protocols in place, whereas for companies under $100 million, the averages were about six in ten. Implementation of retention and litigation hold protocols remains an open question, as 64% of respondents indicated they had not yet conducted any employee training in these related areas.

13. Domestic Caseloadsâ€“ For most American companies, the battle lines are largely domestic: 97% of counsel reported that their most significant matters resided in U.S. courts. Companies cited California and Texas as their most important jurisdictions, followed by New York, Florida, Illinois, Louisiana, Pennsylvania, New Jersey, Ohio, and Mississippi. For sheer volume of pending U.S. litigation, companies based in Southern states reported the highest overall caseload, followed by companies in California, the far West, the Midwest and Texas.

14. International Docketsâ€“ American businesses certainly face a substantial tide of disputes on an international scale. While 55% of the U.S. companies surveyed had no litigation matters (excluding arbitration) pending abroad, more than a third said that up to 20% of their dockets were in venues outside the United States. That 20% threshold was reached by more than half of the billion-dollar companies â€“ two-thirds said they had at least some litigation pending in a foreign jurisdiction. Leaving aside U.S. courts, American companies said they currently faced the most lawsuits in North Asia (Japan and Korea) followed by South America, Western Europe (excluding the U.K.), Eastern Europe, the U.K., and Canada. Asked to gaze into the future, U.S. in-house lawyers named East Asia (China, Hong Kong, Taiwan and Macau) as the foreign locale likely to generate the largest increases in litigation during the next three years, a possible reflection of the regionâ€™s rapid growth and reported laxity in certain areas of legal compliance in such areas as intellectual property and financial services compliance. For non-U.S. companies, South America appears to be the largest litigation magnet â€“ foreign counsel reported an average caseload in that region of 1,597 cases.

15. Litigatingâ€œOver Thereâ€�â€“ Litigating on foreign soil has its own varying degrees of difficulty and the Fulbright respondents noted the challenges troubling them the most. The biggest hardship cited was a lack of familiarity with a particular countryâ€™s legal system â€“ 58% cited this as their top concern, followed by a perceived foreign bias against U.S. companies and a lack of relationship with host counsel. Legal costs and language or cultural differences were next in line. U.S. companies were not bothered by lack of juries or punitive damages in overseas venues, while only 8% cited time to resolution as an issue. On the other hand, the foreign counsel surveyed by Fulbright fingered high legal costs as their No. 1 concern about litigating in the U.S., followed by the threat of punitive damages and a lack of familiarity with the American legal system. The prospect of jury trials and liberal discovery rules in the U.S. were also among the leading causes for alarm by internationally-based companies. Asked which regions worldwide have the best judicial systems, U.S. respondents chose a narrow band of English-speaking geography â€“ Canada, the U.K. and to a lesser extent, Western Europe and Australia. No other country or global jurisdiction drew more than a 1% approval rating.

16. Global Arbitrationâ€“ To an increasing extent, international disputes are taken to arbitration forums, and Fulbright invited the respondents to respond to a number of arbitration-related questions:

a)Forum Choiceâ€“ Among arbitral institutions worldwide, U.S. companies overwhelmingly preferred the American Arbitration Associationâ€™s International Centre for Dispute Resolution. Their second choice was the International Chamber of Commerce based in Paris, followed by the London Court of International Arbitration. Companies gave considerably lower endorsement to other major international forums: less than 20% of U.S. respondents indicated a preference for arbitration pursuant to the rules of the CPR Institute for Dispute Resolution; the World Intellectual Property Organization; the United Nations Commission on International Trade Law, or the International Centre for the Settlement of Investment Disputes.

b)Dispute-Spottingâ€“ U.S. counsel had definite ideas on which kinds of cross-border disputes were best suited for international arbitration. At the top of the pecking order were contractual disputes of all types (56%), followed by disputes concerning insurance (33%), IP (24%), antitrust (20%), labor/employment (16%), and banking (14%).

c)To Litigate or Arbitrateâ€“ While U.S. counsel do not discount the importance of litigating international cross-border disputes, the survey results gave a slight edge to arbitration. A 75% majority felt that the enforceability of an arbitral award was at least comparable to that of a court decision (including 5% who said arbitral awards were more easily enforced). Respondents also showed a slight arbitration preference based on cost: 22% of counsel believed that international arbitration is a less expensive route than litigation, while a near equal 19% of counsel considered international arbitration to be the more expensive proposition; a much larger 59% said there was no appreciable difference between the two. One area where international arbitration clearly came out ahead was in time to resolution: 41% of U.S. counsel felt that their disputes were concluded more quickly via international arbitration than in a conventional court, whereas only 15% thought that litigation represented a faster track to resolution.

17. Selecting Counsel for International Disputesâ€“ Whether an international dispute will be addressed in an arbitration setting or a foreign courtroom, in-house counsel clearly consider certain attributes more important for their outside attorneys to possess than others. By far, international arbitration experience was the most important factor for U.S. companies in selecting outside attorneys to represent them before a foreign tribunal. Subject matter expertise was considered the second most important criterion, followed by industry knowledge. Foreign counsel agreed, ranking the same top three criteria as their U.S. peers. More generally, the key concerns expressed by U.S. law departments in hiring foreign counsel include: strong relationships with U.S. firms; the ability to communicate easily with U.S. counsel; familiarity with the companies involved in a dispute; and familiarity with the legal systems of different countries.

18. Litigator Job Securityâ€“ While a number of businesses have actively sought to reduce their reliance on outside lawyers â€“ including some famous examples of heavy streamlining among the Fortune 500 â€“ litigation seemingly tends to create a need for more, not fewer, advocates. Only 7% of U.S. companies said they worked with as few as one or even no outside law firms to represent them in legal disputes. Fifty-six percent employed up to 10 outside firms, while 42% of companies kept more than 10 law firms busy on litigation work, including a sizable 27% that had enough actions to engage more than 20 outside firms. The need for legions of outside lawyers was more acute for billion-dollar companies â€“ half of these respondents retained more than 20 outside firms. Insurance companies carry the greatest load of outside counsel â€“ 58% said they had 20-plus firms in their employ, as expected for a segment with an average docket of nearly 1,700 cases per company. Manufacturers were the second-largest user of outside litigators, followed by retailers/wholesalers, engineering/construction firms, energy concerns, and financial services companies. It doesnâ€™t appear that law firm litigators will go wanting for work any time soon: only 17% of counsel said they expect the number of firms they call on for litigation to decrease, whereas 83% believe the number will stay constant or increase in the near future.

19. The Virtual Law Firmâ€“ One oft-proposed solution to the challenges posed by using so many outside lawyers to handle increasingly complex litigation matters is the creation of a virtual law firm strategy, whereby a number of firms come together with different specialties and responsibilities to form a single, all-star unit â€“ one firm managing e-discovery, another handling expert testimony, and still other firms leading trial, appellate and regulatory work. As promising as it sounds, virtual law firms are not yet an idea whose time has arrived. Eighty-three percent of companies said they have never made use of law firm cooperatives in connection with litigation matters. Counsel at billion-dollar firms seem the most willing users â€“ 24% of large-firm counsel reported having tried a virtual legal strategy for their cases. The kinds of disputes that counsel said were most conducive to the virtual firm approach were class actions, contracts and environmental/toxic tort cases. For companies that have actually gone the virtual route, the benefits are pronounced. Nearly 90% of virtual users said the case outcome was superior to a single firm model at least some of the time; approximately half felt that use of the virtual firm strategy frequently achieved better results than any single law firm.

20. Good Communication May Trump Performanceâ€“ While high costs have typically been cited as in-house counselâ€™s chief complaint against their law firms, only 19% of U.S. respondents singled out cost as the issue most likely to provoke an actual firing. A far higher percentage â€“ 46% â€“ pointed to lack of competence as the No. 1 cause for switching outside counsel. Even losing doesnâ€™t necessarily bring down the ax â€“ only 8% of companies said they would drop their litigation counsel due to poor results in a matter, whereas 13% would do so based on the poor client communication. In prior surveys, counsel have upbraided their outside lawyers for failing to return phone calls. Of this yearâ€™s respondents, 4% said they would fire their litigation firm for not returning a client call.

21. Parting Shotsâ€“ Even if they rarely send their law firms packing, respondents were thoroughly outspoken on the infractions of outside counsel that irritate them the most, beginning as always with billing issues. Invited to deliver an open-ended message to the firms they employ, counsel hit all of the key hot buttons. Here is a brief sampling (all comments are verbatim):

On Costs: â€œDonâ€™t overbill me â€“ if I think Iâ€™m being overcharged that firm will not get any more work;â€�â€œIf you give a budget, stick to it;â€�â€œWe need more value for the amount of money weâ€™re spending;â€�â€œEfficiency matters;â€�â€œGood work at a fair price generates repeat business;â€�â€œKeep the big picture as to costs/exposure in mind.â€�

On Communications: â€œKeep me informed;â€�â€œBe clear in communicating your overall project strategy;â€�â€œWhat we have here is a failure to communicate;â€�â€œGive me full information on the options.â€�

On Work Process: â€œEfficiency matters;â€�â€œOnly do the work that is essential;â€�â€œWork to understand your clientâ€™s objectives;â€�â€œUnderstand our business;â€�â€œSenior partners should mentor your associates to know your clientâ€™s business.â€�

On Client Relations: â€œDo not tell me you are competent if you arenâ€™t;â€�â€œHave the courage to give advice;â€�â€œDonâ€™t underestimate the sophistication and knowledge of inside counsel â€“ We know much more than you think we do;â€�â€œPerform to my satisfaction if you want more work.â€�

On Delivering Solutions: â€œWe want results, not activity;â€�â€œJust because it should be done, doesnâ€™t mean it can be done;â€�â€œBe creative;â€�â€œWe retain lawyers, not firms.â€�

Note about the Survey

Fulbright & Jaworskiâ€™s corporate counsel 2006Litigation Trends Survey was conducted during May and June of 2006 by Business Development Directives, an independent research firm in Eagle, Wisconsin. The survey sampled corporate law departments for their views on the state of litigation in the United States and abroad. This is the third survey since 2004.

With 422 participants â€“ including 311 in the U.S. â€“ the Fulbright study is one of the largest surveys of in-house counsel focused on litigation and dispute issues and equates to a 95% confidence level with a +/- 4.5% margin of error. Three-quarters of this yearâ€™s respondents were employed by companies headquartered in the U.S.; the other 25% were with companies based in 22 different countries. Eighty-five percent of the U.S. respondents had â€œgeneral counselâ€� in their title. Other titles included chief legal officer, vice president legal affairs, chief compliance officer, litigation manager or staff attorney, as well as titles indicating positions in senior corporate management, such as CEO or CFO.

Survey Participants

Overall, the survey reflects a broad range of enterprises. Seventy-eight percent of all respondents identified the primary industry in which they do business as manufacturing, financial services, energy, health care, pharmaceutical, retail/wholesale, technology/communications, engineering/construction, insurance, real estate, trade association, non-profit, or education; the remainder were in industries that fell outside of these areas.

In the U.S., just over half of counsel work for companies having $1 billion or more in revenues; 28% represented companies with sales in the range of $100 million to $900 million; and nearly one-quarter worked for companies with gross revenues under $100 million. Fifty-two percent of the U.S. participants came from companies that were publicly held. The highest concentration of publicly-held companies was found among the $1 billion-plus revenue businesses, although 39% of the middle-market firms were publicly held as well.

Companies from 29 states were represented in the survey, with the heaviest concentrations being from the Midwest and the East Coast/New England. Among individual states, Texas and California were most heavily represented.

About Fulbright & Jaworski L.L.P.

Fulbright & Jaworski L.L.P. is consistently ranked among the best litigation firms in the United States. The firm received the â€œ2005 Client Choice Awardâ€� as the top law firm in the world for client service in the U.S. by International Law Office, and has been named a â€œPower Elite Law Firmâ€� in the 2006 BTI survey of FORTUNE 1000 general counsel; a top 20 corporate law firm in America by Corporate Board Member magazine; a top U.S. dispute resolution law firm in the Global Counsel 2004/2005 Dispute Resolution Handbook; among the "Arbitration Elite" by The American Lawyer; and a top 10 U.S. law firm for intellectual property litigation by IP Worldwide. Founded in 1919, Fulbright is a full-service international law firm, with more than 970 attorneys in 14 offices. For more information, visit www.fulbright.com.